HOUSTON – Harris County District Attorney Sean Teare’s office is telling local law enforcement agencies it cannot accept charges against individuals possessing a vape pen suspected to contain THC, according to new guidance obtained by KPRC 2 News.
A spokesperson for the DA’s office confirmed Teare sent a letter and the new guidance to law enforcement agencies earlier this week after several inquiries from local departments.
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The guidance was necessary, officials said, because of a lack of ability to prove the origin of THC in vape pens based on current lab capabilities.
New guidance
Under the new guidance, the DA’s office says it will not accept charges for individuals possessing a vape pen believed to contain THC because local crime laboratories are not able to determine “if the THC in vape pen oil is derived from marijuana, hemp, or produced synthetically, making these products materially different from smokeable hemp flower and pre-rolled joints,” according to the document.
Under state law, hemp is excluded as a controlled substance, and hemp is defined as “the plant Cannabis sativa L and . . . extracts . . . with a delta-9-tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis.”
While local crime labs can determine whether THC is present in a vape, and the DPS lab can determine if delta-9-THC levels are above 1%, the DA’s office guidance indicates none of the local crime labs are able to determine the exact delta-9-THC concentration if it’s between 0.3% and 1%.
Since vape pens require liquid and the legislature did not define the meaning of the word “dry,” DA’s office general counsel Joshua Reiss said it presents a challenge for determining legally acceptable levels. He added that storing vape pens as evidence presents a risk to property rooms as the devices utilize lithium batteries and have caused fires in the past.
Legislation issues
In a letter to law enforcement agencies, Teare wrote that “recent changes in state law, combined with a rapidly evolving cannabis industry, have understandably led to confusion among officers regarding which THC-related and THC vape pen possession charges HCDAO will accept.”
A DA’s office spokesperson told KPRC 2 News they hope future legislation will create clarity.
What’s still accepted
In the same guidance document, the DA’s office indicates that agencies that seize vape pens from retail establishments “marketed as containing THC should seek charges at HCDAO.”
The agencies should also follow state requirements for disposing and destructing seized vape pens.
Under this section of the state law, Reiss said testing is not required of the products, but it’s a class A misdemeanor if the products are marketed, advertised, offered for sale, or sold.
As part of the guidance, the DA wrote that it’s not designed to impact any school policies, reiterating that e-cigarette possession by minor remains a class C misdemeanor and any “school policies prohibiting e-cigarettes, including vapes by minors, are fully enforceable.”
Subject to change
The current guidance being offered is based on an analysis of laws and discussions with the Houston Forensic Science Center, Harris County Institute of Forensic Science, and the DPS Crime Laboratory Division, but the DA’s office indicates updated guidance could come as legal definitions and scientific methodologies continue to develop.
“We pledge to always work closely with law enforcement to investigate, charge, and prosecute serious drug-related crimes, and we remain particularly focused on dismantling organized gangs, stopping the trafficking and selling of lethal controlled substances,” Teare wrote in the letter.